Georgia Law Criminalizes Wearing a Niqāb in Public

Here's an interesting little tidbit. I was spelunking around in the Georgia Code (as I imagine most law students do more frequently than can really be explained) and I came across OCGA §16-11-38, entitled "Wearing mask, hood, or device which conceals identity of wearer." The OCGA is hosted in an extremely annoying Lexis database that prevents internal linking, so I've reproduced the statute in its entirety below.

This is an old anti-Klan section of the law, but it occurred to me that it bars practitioners of Islam from wearing a Niqāb in public. The statute makes it a misdemeanor to wear anything that obscures the identity of the wearer, which some versions of the Niqāb definitely do.

The statute includes four exceptions, but ironically, because the Klan used religion as a cover for its violent activities, the statute doesn't allow for a religious exception. Does anyone know if this section of the OCGA has ever been challenged on religious grounds? There's a case from 1990 in which a Klan member challenged it (and lost) on free speech grounds, but I haven't seen a religious challenge. The law seems to be still in force, too, having apparently been used against the Anonymous protesters.

For those wondering, the exceptions included are Halloween, trade garb (think baseball catchers and welders), theatrical productions, and gas masks (almost certainly as a result of WWII / Cold War paranoia at the time of the drafting in 1951).




§ 16-11-38. Wearing mask, hood, or device which conceals identity of wearer

(a) A person is guilty of a misdemeanor when he wears a mask, hood, or device by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer and is upon any public way or public property or upon the private property of another without the written permission of the owner or occupier of the property to do so.

(b) This Code section shall not apply to:

(1) A person wearing a traditional holiday costume on the occasion of the holiday;

(2) A person lawfully engaged in trade and employment or in a sporting activity where a mask is worn for the purpose of ensuring the physical safety of the wearer, or because of the nature of the occupation, trade, or profession, or sporting activity;

(3) A person using a mask in a theatrical production including use in Mardi gras celebrations and masquerade balls; or

(4) A person wearing a gas mask prescribed in emergency management drills and exercises or emergencies.